People v. Johnson

609 N.E.2d 304, 154 Ill. 2d 227, 182 Ill. Dec. 1, 1993 Ill. LEXIS 11
Illinois Supreme Court·Decided February 18, 1993·No. No. 70469·Published·Cited by 290 cases

Opinion

JUSTICE BILANDIC

delivered the opinion of the court:

The defendant, Milton Johnson, appeals from an order of the circuit court of Will County dismissing his petition for post-conviction relief. The defendant’s appeal lies directly to this court pursuant to Supreme Court Rule 651(a) (134 Ill. 2d R. 651(a)).

Following a jury trial, the defendant was convicted in the circuit court of Iroquois County of the murder of Anthony Hackett and the attempted murder, rape, deviate sexual assault and aggravated kidnapping of Patricia Gail Payne. The defendant waived his right to a jury at the death penalty hearing. The trial court determined that one or more of the aggravating factors set forth in section 9 — 1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 9 — 1(b)) existed and that there were no mitigating factors sufficient to preclude a sentence of death (see Ill. Rev. Stat. 1983, ch. 38, par. 9— 1(g)). The court then sentenced the defendant to death for murder and to concurrent prison terms of 40 years for rape, deviate sexual assault and attempted murder. This court affirmed the defendant’s convictions and sentences on direct appeal (People v. Johnson (1986), 114 Ill. 2d 170), and the United States Supreme Court denied certiorari (Johnson v. Illinois (1987), 480 U.S. 951, 94 L. Ed. 2d 802, 107 S. Ct. 1618).

The defendant then instituted the present action under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1987, ch. 38, par. 122 — 1 et seq.), by filing a pro se petition for post-conviction relief in the circuit court of Will County. The petition alleged that the defendant was deprived of the effective assistance of counsel. The court appointed the Will County public defender to represent the defendant in the post-conviction proceedings. Subsequently, the assistant public defender who was working on the defendant’s case resigned from the public defender’s office and was appointed to represent the defendant. On December 14, 1989, defendant’s counsel filed an amended post-conviction petition which realleged the allegations in the pro se petition and added two new allegations. The State moved to dismiss the post-conviction petition. Following arguments, the trial court granted the State’s motion and dismissed the defendant’s post-conviction petition without an evidentiary hearing. The defendant’s appeal from this dismissal was transferred to this court for direct review, pursuant to Supreme Court Rule 651 (134 Ill. 2d R. 651).

The facts of this case are adequately set forth in this court’s opinion on the defendant’s direct appeal (People v. Johnson (1986), 114 Ill. 2d 170) and will be repeated here only where necessary. Two issues are raised in this appeal: (1) whether the defendant received the effective assistance of counsel on direct appeal; and (2) whether the defendant received adequate representation in the post-conviction proceedings.

I

We first consider the defendant’s post-conviction claim that he was deprived of the effective assistance of counsel on direct appeal. The Post-Conviction Hearing Act (the Act) provides a remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred in their trials. (People v. Eddmonds (1991), 143 Ill. 2d 501, 510.) The purpose of the post-conviction proceeding is to permit inquiry into constitutional issues involved in the original conviction that have not been and could not have been adjudicated on direct appeal.

The defendant argues that the trial court should have granted him relief on his post-conviction claim that he was deprived of the effective assistance of counsel on direct appeal. The defendant initially claims, for the first time in this appeal, that his appellate counsel was ineffective in failing to challenge the trial court’s exclusion of photographs of his brothers. He claims that these photographs were relevant because they “resemble more closely” the police artist sketch than did the defendant. We decline to address this claim, as it was not raised in either the pro se or the amended petition for post-conviction relief, and was therefore waived. (People v. Flores (1992), 153 Ill. 2d 264, 274.) The defendant next claims that his appellate counsel was constitutionally ineffective because he failed to raise as an issue, on direct appeal, the trial court’s refusal to admit a police artist sketch of the offender into evidence at trial.

Challenges to the effectiveness of counsel on direct appeal are judged under the two-pronged standard enunciated in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (See People v. Albanese (1984), 104 Ill. 2d 504.) Under this standard, the defendant must first establish that his counsel’s performance on direct appeal was deficient, in that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” (Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.) Second, the defendant must demonstrate that he suffered prejudice as a result of his counsel’s deficient performance. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) To demonstrate prejudice, a defendant must show a reasonable probability that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068.) A defendant who contends that appellate counsel was ineffective for failing to raise a particular issue on direct appeal must show that “the failure to raise that issue was objectively unreasonable” and that “but for this failure, his sentence or conviction would have been reversed.” (People v. Caballero (1989), 126 Ill. 2d 248, 270.) Both prongs of the Strickland test must be satisfied before counsel will be found to have rendered constitutionally ineffective assistance.

The trial court dismissed the defendant’s post-conviction challenge to the competency of his appellate counsel. The court found that the defendant had not made a substantial showing that his appellate counsel was incompetent, within the meaning of Strickland, for failing to challenge on direct appeal the trial court’s refusal to admit the police artist sketch into evidence. At trial, the defendant sought to introduce the police artist sketch into evidence for the purpose of impeaching the identification testimony of Patricia Gail Payne, the surviving victim of the defendant’s attack. The defendant claimed that the sketch was prepared at Payne’s direction and bore no resemblance to the defendant. The trial court refused to admit the sketch, finding that the defendant failed to lay a proper foundation for its admission. In so holding the trial court relied upon this court’s decision in People v. Yates (1983), 98 Ill. 2d 502.

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People v. Johnson, 609 N.E.2d 304, 154 Ill. 2d 227, 182 Ill. Dec. 1, 1993 Ill. LEXIS 11 (Ill. 1993).

609 N.E.2d 304 (People v. Johnson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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